Subpoena names AutoAdmit commenter

With the help of a subpoena issued eight months ago, two female Yale Law School students who were smeared on the Web forum AutoAdmit in 2005 finally found out this summer whom they are suing for defamation — more than a year after they first filed.

An Aug. 5 amended complaint filed by the two women named one defendant, Matthew Ryan, a senior math major at the University of Texas, Austin. The other 38 commenters being sued retained their pseudonyms in the complaint.

Several more of those commenters have also been unmasked, but the plaintiffs are trying to negotiate an out-of-court settlement, said Mark Lemley, a Stanford University law professor who is representing the two Yale students. If those talks fail, those commenters, too, will be outed, he said.

While this development does not break any new legal ground, several experts interviewed said, it is one of the few — and certainly one of the highest-profile — examples of defamation lawsuits that have successfully pierced the veil of online anonymity.

The two students, who remain unnamed in the suit, decided to sue after sexually explicit and derogatory posts targeting them and one other female Yale Law School student appeared on AutoAdmit, an online community where law students can discuss law-school admissions and law-firm life, in 2005.

It is not yet clear how or whether Ryan knew the students. He has not responded to repeated requests for comment. Both of the Yale Law students declined to comment this summer.

Ryan’s identity was discovered through subpoenas against his Internet service provider, which traced the comments he posted anonymously on AutoAdmit using the screen name “:D”.

The claims against Ryan and the 38 other commenters include libel and intentionally inflicting emotional distress.

Ryan, specifically, made several posts about one of the women, including sexual and anti-Semitic slurs and vulgar references to her breasts.

While those comments may be sufficiently eye-raising, proving them illegal could be a tougher sell, said Eugene Volokh, a law professor at the University of California, Los Angeles.

Speech that is purely pejorative, no matter how offensive, cannot be libelous, Volokh said. Defamatory speech has to present some kind of false allegation, he said.

One of Ryan’s posts, which alleges one of the women has herpes, could toe that line, he said, but it is a matter of context; a libelous statement has to be believable, he said, not simply hyperbolic or metaphorical.

That call, Volokh said, is up to a jury to make.

Now that a defendant has been named, a jury may soon have just such an opportunity. Moving to trial and winning damages would have been impossible if the defendants’ identities had remained unknown, Lemley said.

“The case can now proceed,” he said.

The women are seeking at least $245,400 in damages.

The discovery of Ryan’s identity still follows “well-worn grooves” and has not yet ventured into uncharted legal territory, said First Amendment lawyer Marc Randazza, who is no longer involved in the case but formerly represented an AutoAdmit administrator, Anthony Ciolli, who was initially sued as well.

Courts have long recognized that subpoenas may be available to identify anonymous commenters if litigants can demonstrate a plausible case for defamation and are not simply trying to intimidate critics, Volokh said.

While subpoenaing ISPs to identify commenters under certain circumstances is settled law, Volokh said he is not sure whether the tactic has ever been successfully deployed before.

But even if this case does not set new precedent, he said, its publicity may serve to discourage some speech by dramatizing the boundaries of anonymity.

“It might remind some potential would-be defamers that their anonymity may not be secure,” Volokh said.

Anonymous speech is usually constitutionally protected, but defamation and threats are not, Volokh said. In order to issue a subpoena, litigants need to show that they have valid grounds and a serious claim, Randazza said.

Even after this latest stride forward, the students’ suit has become increasingly messy as it wears on, heaping up a thicket of countermotions and time extensions. The two Law School students and their attorneys have also been countersued by Ciolli, who is alleging wrongful prosecution.